People v. McTameney

Learned, P. J.

— The Penal Code (see. 528) defines larceny ; sections 530 and 531 define grand larceny in the first and second degrees, and section 532 declares every other larceny to be petit larceny.

The prisoner was indicted for grand larceny and was convicted of petit larceny. We think that this was proper under sections 444 and 445, Code Criminal Procedure. The offense of which he was convicted was of a degree inferior to that of which he was indicted; and we do not think that section 56 of that same Code is to be construed to take from a jury in the courts of oyer and terminer and of the sessions the power to find a verdict of petit larceny when the prisoner has been indicted for grand larceny and is on trial before them for that crime.

If such construction were to be given to that section, and if such a jury should be obliged to acquit in case they were satisfied the stolen property was not of the value of more than twenty-five dollars, probably the prisoner could not thereafter be tried for such stealing.

The next question is as to the length of the sentence.

The sections of the Penal Code above cited are intended to take the place of 2 Eevised Statute (m.p.) 679, section 63, and 690, section 1. Section 535 declares that petit larceny is a misdemeanor,' meaning petit larceny as in that Code defined; Section 719 declares that an offense specified in the Code committed' after, &c., must be punished according to the provisions of that Code. Section 15 declares the punishment-of misdemeanors to be imprisonment for not more than a year or a fine of $500, or both, unless some other punishment is specially prescribed by the Code or by some other statutory provision. Eo other punishment is specially prescribed by the Code for petit larceny, and none by any other statute unless 2 Eevised Statute (to. p.) 690, section 1, be in force.

The Penal Code is a general statute intended to define nearly all offenses and to prescribe the punishment. Section 726 repeals all inconsistent acts so far as they impose .any punishment for crime. The penalty imposed by the section of the Eevised Statutes above cited is certainly inconsistent with that imposed by the Code. It cannot be understood that the exception made in section 15 of the Penal Code was to take away the effect of section 726.

The argument of the prisoner is that whenever a punishment had been prescribed for' a misdemeanor previously to the Penal Code which was not in express and specific language repealed, that putiislnnent remains in force.

Eow, if we turn to 2 Eebised Statutes (to. p.) 697, section 40, we find a provision for the punishment of all misdemeanors of which the punishment is not prescribed by some other statute. Therefore, according to the argument of the prisoner, a punishment is especially prescribed - for every misdemeanor. And therefore every misdemeanor is excepted from section 15 of the Penal Code. This is plainly unreasonable.

Again: The definitions of larceny in the Penal Code are not identical (in language) with those in the Revised, Statutes. Therefore, that part of section 1 (2 Revised Statutes, m.f>. 690) which defines petit larceny is not in force. Why, then, the residue of the section? The prisoner’s position, if correct, would apply apparently to other cases of misdemeanors. For instance, section 651 of the Penal Code declares certain interference with gas pipes to be a misdemeanor, but prescribes no penalty. This section is substantially the act of 1854 (eh. 109, secs. 1 and 2), by which the crime was declared and a penalty prescribed of six months imprison-ment and a fine of $250. Are we to understand, then, that a violation of section 651 of the Penal Code is not punishable under section 15 of the same Code, but that the penalty prescribed in the act of 1854 is in force ? Tinder such a construction the Penal Code would cease to be a complete system, as it was intended to be (See. 7).

The judgment and conviction should be affirmed.

All concur.

Judgment and conviction affirmed.